Supreme Lodge Knights of Pythias v. Lipscomb , 50 Fla. 406 ( 1905 )

Shackleford, C. J.,

(after stating the facts). Eighteen errors are assigned, several of which, however, are either expressly or impliedly abandoned and, following our established practice, we shall consider only such assignments as are argued here.

The first assignment is that “the court erred in refusing to grant defendant to amend defendant’s first plea by striking out the first seven lines thereof.”

The bill of exceptions discloses that after the trial of the case had begun and the plaintiff had introduced a part of her evidence the defendant asked leave of the court to amend its first plea by striking out the first seven lines thereof, which motion was denied and an exception to the ■ ruling duly noted. The seven lines so sought to be stricken embraced the following:

“Defendant admits that Frank M. Lipscomb was a member of the Endowment Rank of the Knights of Pythias and that as such member certificate number 128997 for the sum of one thousand dollars was duly issued to him on the 20th day of January, 1908; that after the issuance of said certificate, to-wit: On the first day of February, the said Lipscomb died and the proper proof of such death was submitted to the board of control Endowment Rank Knights of Pythias.”

The plea of which these words formed a part was filed on the fourth day of January, 1904, replication was filed thereto on the 7th day of March, 1904, and yet not until the 14th day of November following, after the case had come on for trial and plaintiff had introduced part of her evidence did defendant seek to have its plea amended. Our statutes permitting amendments are very liberal, secs. 1042 et seq. of Revised Statutes of 1892, but the matter of allowing or refusing amendments of pleadings must rest largely within the sound judicial discretion of the trial court, as that court must determine whether or not the amendment asked for is “necessary for the purpose of determining in the existing suit the real question in controversy between the parties,” and whether or not it has been “duly applied for,” and an appellate court will not disturb the ruling of the trial court either in granting or in denying such application, unless it is plainly made to appear that there has been an abuse of judicial discretion. Smith v. Westcott, 34 Fla. 430, 16 South. Rep. 332; Dubos v. Hoover, 25 Fla. 720, text 722, 6 South. Rep. 788; Robinson v. Hartridge, 13 Fla. 501; Neal v. Spencer, 20 Fla. 38 ; Livingston v. Anderson, 30 Fla. 117, 11 South. Rep. 270; Hart’s Executor v. Smith, 20 Fla. 58; Burt v. Florida Southern Railway Co., 43 Fla. 339, 31 South. Rep. 265. No reason or excuse was offered for not applying earlier to the court for leave to amend this plea, and we are of the opinion that no error was committed by the trial court, in refusing the application.

The third and fifth assignments are based upon the refusal of the court to give special charges' Nos. 5 and 7a asked for by the defendant. An examination of these charges discloses that each was objectionable upon several grounds, a common ground being that they were violative of section 1088 of the Revised Statutes of 1892 in that they charged upon the facts. Southern Pine-Co. of Georgia v. Powell, 48 Fla. 154, 37 South. Rep. 570, and authorities therein cited.

The sixth assignment is predicated upon the giving of the following instruction by the court of its own motion:

“It devolves upon the plaintiff to prove by a preponderance of the evidence in this case that the deceased, Frank M. Lipscomb, did not come to his death while in an act in violation of or in an attempt to violate a criminal law of the State or Federal Government, and, if the plaintiff fails to prove such fact by a preponderance of the evidence, you should find for the defendant.”

This charge was entirely too favorable to defendant, and, though erroneous in that it imposed a duty upon plaintiff which the law did not cast, defendant certainly has no cause of complaint. Bacon v. Green, 36 Fla. 325, text 345, 18 South. Rep. 870. Murray v. New York Life Ins. Co., 85 N. Y. 236, is directly in point. The policy in that case, provided that if the insured should die in consequence of the violation of any law the policy should be void; the complaint, corresponding to our declaration, filed therein alleged that the death was not caused by the breaking of any of the conditions of the policy, the answer filed therein denied this allegation and averred that the insured died in consequence of a violation by him of the State law. It was held in the opinion rendered therein that the allegation in the complaint that the death of the insured was not caused by the breaking of any of the conditions of the policy was not essential to the cause of action and was an unnecessary allegation, yet, even though so alleged, plaintiff could not be required to prove it, that the defendant, having denied this allegation and set up in its answer the fact that the insured came to his death in consequence of the violation by him of the laws of New York, 'had the burden cast on it of proving said defensive matter by a preponderance of the evidence. This cited case is instructive in the instant case upon several points. Also see 5 Amer. & Eng. Ency. of Laws (2nd ed.) 30; 2 Abbott’s Trial Brief, Pleadings (2nd ed.) 902, 1626. That it is unnecessary for the plaintiff to anticipate defenses in an action upon an insurance policy and negative them in his declaration, see Tillis v. Liverpool, London & Globe Ins. Co., 46 Fla. 268, 35 South. Rep. 171; Indian River State Bank v. Hartford Fire Ins. Co., 46 Fla. 283 , 35 South. Rep. 228.

The seventh assignment is that “the verdict is contrary to law,” and the eighth is that “the verdict is contrary to the evidence.” We shall pass these assignments until we reach the eighteenth and last assignment, which is based upon the denial of the motion for a new trial.

The thirteenth assignment is based upon the denial by the court of the defendant’s motion for a continuance.An examination of this motion and of the accompanying affidavit discloses that some of the necessary requirements of an application for a continuance, as laid down by this court in numerous decisions, are wanting. Sea Harrell v. Durrance, 9 Fla. 490; Green v. King, 17 Fla. 452; Sanford v. Cloud, 17 Fla. 532; Livingston v. Cooper, 22 Fla. 292; Reynolds v. Smith, 49 Fla. 217 38 South. Rep. 903. As we said in Jones v. State, 44 Fla. 74, 32 South. Rep. 793, “Denial of a motion for a continuance will not be reversed by an appellate court unless there has been a palpable abuse of discretion clearly and affirmatively shown by the record.”

The fourteenth, fifteenth and sixteenth assignments are based upon the overruling of the defendant’s objections to the introduction in evidence of the certificate or policy of insurance which formed the basis of the action. We are of the opinion that there is no merit in these assignments. The pleas of the defendant expressly admit that the defendant insured the life of Frank M. Lipscomb by a certificate of insurance, which they identify by description, impliedly admitting the correctness of the copy attached to the declaration. The only facts which were really to be tided were those averred in the affirmative defense set up in the pleas that said Lipscomb died in consequence of a violation of a criminal law of the State of Florida, and, as we have already seen, the burden was upon the defendant to prove these facts. Murray v. New York Life Insurance Co., supra. It is elementary that facts admitted by the pleadings need not be proved. 2 Abbott’s Trial Brief, Pleadings (2nd ed.) 914; 1 Thompson’s Trials, Sec. 197. In fact, all the allegations in the declaration which are not denied by plea are admitted to be true. Pitt v. Acosta, 18 Fla. 270; Hyer v. Vaughn, 18 Fla. 647; Hooker v. Johnson, 10 Fla. 198.

The seventeenth assignment is that “the court erred in allowing J. B. Johnson and W. B. Davis to testify to the value of attorney’s fees for conducting this suit.”

We find that the grounds of objection to the testimony of these witnesses were: “1st. That the defendant was not at the time of issuing the certificate or at the time of instituting of this suit an insurance company. 2nd. That attorney’s fees were not properly an element of damage in the suit pending.” The only argument made here by the plaintiff in error in support of this assignment is that Chapter 4173 of the Laws of 1893, which provides that a judgment for reasonable attorney’s fees shall be entered in favor of the holder of a policy in an action against any life or fire insurance company in this State, wherein plaintiff recovers judgment, has been repealed by Chapter 4380 of the Laws of 1895, in so far as Knights of Pythias and the other orders enumerated in section 8 of said Chapter are concerned. This position is untenable, as a mere inspection of said two Chapters will show. Chapter 4380 neither directly nor by implication repeals Chapter 4173, and in no wise relates to or affects it. In Tillis v. Liverpool & London & Globe Ins. Co., 46 Fla. 268, 35 South. Rep. 171, and Hartford Fire Insurance Company v. Redding, 47 Fla. 228, 37 South. Rep. 62, S. C. 67 L. R. A. 518, we held Chapter 4173 of the Laws of 1893, to be constitutional. No attempt was made in the instant case to have this count of the declaration struck out under section 1043 of the Eevised Statutes of 1892, as was intimated in Tillis v. Liverpool & London & Globe Co., supra, might be pursued in the event such a count was thought calculated to embarrass the fair trial of the cause. It was not questioned or attacked in anyway until plaintiff offered the testimony in question. While it is true that the right of the plaintiff to recover attorney’s fees under this count in the declaration might be raised and questioned by 'objections to testimony, (Borden v. Western Union Tel. Co., 32 Fla. 394, 13 South. Rep. 876,) yet upon the grounds of objections interposed by the defendant to this testimony in the trial court, to which specific grounds it is confined in this court, we are of the opinion that no error was committed in overruling them. Hoodless v. Jernigan, 46 Fla. 213, 35 South. Rep. 656. The admissions in defendant’s pleas as well as the testimony introduced in the case tended to show that defendant was engaged in conducting a life insurance business in this State, so as to make Chapter 4173 of the Laws of 1893 applicable in actions brought against it upon policies or certificates of insurance issued by it. No testimony was introduced by the defendant showing or tending to show its exemption from the provisions of said Chapter.

The eighteenth and last assignment is based upon the denial of the motion for a new trial. This motion contains seventeen grounds, but in disposing of the other assignments we have discussed all of them which are argued here (McNish v. State, 47 Fla. 69, South. Rep. 176) except two, that the verdict is contrary to law, and also that it is contrary to the evidence. These two grounds form the basis for the seventh and eighth assignments, which we passed in their regular order, promising to take them up later, which we now do. In our opinion, no extended discussion of them is necessary. As we have seen, the real, issue for the jury to determine was as to whether or not Frank M. Lipscomb came to his death while violating a criminal law of this State, which fact it was incumbent upon the defendant to prove by at least a preponderance of the evidence, yet under an erroneous charge this burden was cast upon the plaintiff. See Schultz v. Pacific Insurance Co., 14 Fla. 73; Williams v. Dickenson, 28 Fla. 90, 9 South. Rep. 847. Notwithstanding this, the jury found a verdict in favor of the plaintiff. We fail to find wherein the verdict was contrary to law, and we are of the opinion that the evidence was sufficient to warrant the jury in finding the verdict which they did, therefore, we must refuse to disturb it. McNish v. State, supra.

The judgment must be affirmed, and it is so ordered, at the cost of the plaintiff in error.

Cockrell and Whitfield, JJ., concur. Taylor, P. J., and Hooker and Parkhill, JJ., concur in the opinion.